The Webb/Mansford proceedings
55 In its final investigation report, ACMA accepted that Ms Webb had been unable to establish that she had sent her complaint by facsimile to the applicant - e.g. by providing a facsimile transmission report. I accept, therefore, that no obligation arose under s 149 to investigate her complaint. I will need to consider whether there was a discretion to do so under s 170 of the Act.
56 In the case of Mr Mansford, the argument is that he failed to make a valid complaint because contrary to cl 5.1 of the Codes, he failed to "adequately identify the material broadcast and the nature of the complaint" (quotes and italics in the applicant's written submissions).
57 ACMA's finding about this was as follows:
Complainant 2
In its response to this complainant, the licensee argued that it was not required to respond to his complaint under the Codes because he did not adequately identify the material broadcast for the following reasons:
• he did not identify the statement of fact he alleged to be incorrect
• his reference to Chris Smith's program did not appear to be accurate, as Chris Smith has not made, or admitted, any errors in broadcasts referring to climate change in September 2013.
In reviewing the complaint, the ACMA considers that it is arguable that the complainant adequately identified the broadcast material. The ACMA notes that the complaint made to the licensee:
• identified the date of broadcast - 24 September 2013
• identified the time of broadcast - 7:00am to 8:00am
• asserted that it was a 'breach of the Commercial Radio Australia Codes of Practice'
• asserted that 'Alan Jones [lied] about the IPCC report and global warming' and 'spoke despite Chris Smith making similar incorrect comments and later admitting his errors'.
While the complainant did not indicate a specific statement he considered to be incorrect, it is relatively clear from his complaint that he was asserting a breach of the accuracy provision of the Codes in regard to comments made by Mr Jones on the rate of global warming reported by the IPCC.
The relevant comments were made by Mr Jones at approximately 7.15am and were distinct and easily identifiable, as Mr Jones clearly referred to the 'IPCC report' and to 'global warming'. The ACMA also notes that the comments made by Mr Jones concerning the IPCC report were centred on the revised figure of global warming (0.12 degrees Celsius) and the (erroneous) comparison of this figure with a rate of global warming from the 2007 report (0.2 degree Celsius). The same erroneous comparison made by several media organisations had received wide media coverage and would have provided further context and clarification concerning the broadcast material that was the subject of the complaint.
Further, the complainant stated in his complaint to the licensee that he heard about the relevant broadcast (in which Mr Alan Jones discussed the draft IPCC findings) on Media Watch. The ACMA notes that on 30 September 2013, Media Watch had again discussed media coverage of the draft IPCC findings, including the relevant broadcast of 24 September 2013, and identified incorrect statements made by Mr Jones regarding the draft IPCC report. It also asserted that Chris Smith had also made similar statements. The reference to Media Watch, together with the other complaint information, further assists in identifying the relevant material broadcast. That is the case regardless of whether or not Mr Chris Smith had in fact made similar statements.
Accordingly, the ACMA is of the view that the complaint arguably contained adequate information to adequately identify the broadcast material and was made in accordance with the Codes.
However, it is not necessary to reach a final view about this issue because, even if it is assumed that the complaint was validly made, the licensee responded to the complainant in accordance with the requirements at clauses 5.5 and 5.6 of the Codes. The licensee initially acknowledged receipt of the complaint, at which point it advised the complainant that a final response would be provided and that he had the right to refer the matter to the ACMA if he was not satisfied with its final response. The licensee subsequently provided the complainant with a substantive response within the required timeframe.
(Emphasis added.) (Footnote omitted.)
58 I can see no error of law in ACMA's conclusions, so far as they went. The applicant was in no sense disabled from responding to this complaint on the merits or misled about its true nature or content. The applicant plainly understood what the relevant statements were and set out to defend them. In my view, the material and the nature of the complaint were "adequately" identified for that purpose and the complaint was a valid one.
59 It would follow that ACMA was obliged by s 149 to investigate the complaint. ACMA purported to do so pursuant to s 170. An administrative tribunal does not lack power or jurisdiction if it does something it had power to do:
… simply because it thought that its power was conferred by one section whereas in truth it was given by another.
(R v Moore; Ex parte Graham (1977) 138 CLR 164 at 173).
60 It will become apparent from the later discussion that I accept ACMA's submission that s 149 was not, in any event, the relevant source of power. Section 149 imposed an obligation but the obligation has been discharged, subject to Mr Mansford being notified of the results of the investigation.
61 The next question which arises is whether it was permissible to investigate Mr Mansford's complaint under s 170, whether or not there was an obligation to do so under s 149. When I have dealt with that issue I will return to consider the position about Ms Webb's complaint to ACMA.
62 The applicant argued that there was no power for ACMA to investigate any complaint (or possible complaint) about a code of practice under s 170 of the Act, but only (if at all) under the combined operation of ss 148 and 149 - i.e. in response to an earlier complaint made first to a broadcaster. This was said to reflect a statutory purpose of "co-regulation".
63 This argument appeared to me to proceed upon two different, and contradictory, foundations. I shall deal with each of them. One foundation was that s 170 simply did not extend to the subject matter of complaints or potential or possible complaints about codes of practice. The other foundation was that the operation of s 170 was confined by the more limited operation of ss 148 and 149. This second aspect of the argument did not depend on the existence of a valid complaint, where s 149 obliged an investigation. It extended to the proposition that the whole subject matter of complaints (or possible complaints) about codes of practice was exhaustively dealt with by ss 148 and 149 of the Act, to the complete exclusion of s 170 of the Act.
64 I propose to consider this issue first by reference to the statutory scheme itself and point out some matters which will also be relevant to bear in mind when I refer to the legal authorities upon which the applicant relied. I also propose to assume, initially, that s 149 and s 170 are each a source of some power to investigate, as the applicant argued. I will need to revisit that assumption.
65 The parties agreed that there are no different statutory consequences which arise from an investigation obliged by s 149 or from one permitted by s 170. That is a most fundamental matter to bear in mind when the authorities are referred to.
66 In my view, the first variant of the argument is answered conclusively (as ACMA submitted) by simply reading s 170 of the Act together with s 10 of the ACMA Act. Subject to consideration of the second variant of the argument, there is no doubt in my view that the power of investigation given by s 170 of the Act extends to matters which might possibly be the subject of a complaint to a broadcaster or to ACMA under s 148, or which actually are. Such matters fall comfortably within the notion of monitoring compliance with codes of practice in s 10(1)(j) of the ACMA Act and within the function to monitor and investigate complaints concerning broadcasting services in s 10(1)(m) of the ACMA Act, at least. Those functions are harmonious with the operation of s 168 of the Act and its explicit reference to conducting investigations and holding hearings and with the extensive catalogue of procedural powers which are prescribed for those purposes.
67 Section 168(1) uses the same point of reference as s 170 (as also does s 182, which gives the power to hold hearings). Section 168(1)(b) refers to ACMA conducting investigations and hearings. Those are fairly obviously references to investigations and hearings conducted pursuant to the specific grants of power in s 170 and s 182.
68 In my view, ss 168, 170 and 182 are general grants of power to ACMA to enable it to perform the functions referred to in s 10 of the ACMA Act. Those functions extend (by virtue of the ACMA Act and the Act) to investigating complaints required to be investigated by s 149. That investigative process falls comfortably within the grant of power given by s 170, and includes access to the range of procedural powers granted by Division 2 of Part 13 of the Act for that purpose.
69 If, as the applicant argued, the powers in Part 11 of the Act are self-contained, or exclusive of the powers in Part 13, one consequence might be that the procedural powers in Part 13 were not available to ACMA in the context of an investigation conducted by reason of s 149. At least that would be so if the two Parts operated in isolation from each other.
70 I can see no reason at all why the procedural powers in Division 2 of Part 13, which clearly apply to investigations conducted by ACMA under s 170, would not also be available in an investigation of a complaint required by s 149, which includes not only complaints under codes of practice first made to a broadcaster under s 148 but also complaints made to ACMA directly under s 147. The character of such complaints, alone, suggests that ACMA was intended to have the usual range of procedural powers to compel co-operation.
71 If all those procedural powers in Division 2 of Part 13 are available in an investigation required by s 149, I can see no reason why s 170 should be thought to stand apart.
72 In my view (and subject to the argument to be addressed next), the conjunction of s 170 of the Act and s 10(1)(m) of the ACMA Act would, without more, provide ACMA with a discretion and power to investigate a complaint (a general term not defined in the ACMA Act or the Act) concerning a broadcasting service, whether or not an obligation arose to investigate the complaint under s 149 of the Act.
73 For those reasons, I reject the argument that s 170, properly construed, does not on its face or in terms extend to an investigation required by s 149. I therefore reject the submission that s 170 is confined at the outset in the way the applicant argued. Then it is necessary to consider whether, as a general power, s 170 should be read down by reference to, or to accommodate, the specific operation of ss 148 and 149.
74 The applicant's second proposition relied on the doctrine of generalia specialibus non derogant as reflected in High Court authorities like Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 ("Anthony Hordern"); R v Wallis (1949) 78 CLR 529 ("Wallis"); and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 ("Nystrom").
75 The passage usually cited from Anthony Hordern is from the judgment of Gavan Duffy CJ and Dixon J (at 7) as follows:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
76 A number of important points should be noted. First, the particular provision must be a source of power. Secondly, it must appoint a particular mode of exercise of the power. In such a case a less restricted operation of the power will not be available. The principle embodied in this passage rests upon an implication that prescribed statutory restrictions upon a particular power cannot be avoided by resort to a more general one.
77 The question for examination usually concerns the statutory limitations which accompany the exercise of a power and whether those limitations, qualifications, conditions or restrictions would be avoided (Anthony Hordern at 7) or some statutory precaution or safeguard might be disregarded or rendered ineffective (Anthony Hordern at 8).
78 The first difficulty with the applicant's argument is that even if s 149 (which states an obligation) and s 170 (which gives a power) have different methods of engagement (e.g. a complaint under s 148 or the exercise of a discretion by ACMA), that does not signify that the mode of exercise of a power of investigation (once engaged) has been relevantly limited (e.g. by s 148). It certainly does not signify that the outcome will be different, assuming both powers are apparently available.
79 The applicant relied upon my earlier judgment in Harbour Radio Pty Ltd v Australian Communications and Media Authority (2010) 184 FCR 537 as contributing to its argument on this point, but the reliance was misplaced. The issue there being considered was whether ACMA was obliged to investigate the particular complaint in that case (see at [27], [29], [36]). It was not necessary in that case to address an argument by ACMA that powers elsewhere in the Act (or in other legislation) were also available to it (see at [40]).
80 In Wallis, the question was whether a clause in an award, providing for a monopoly in employment of members of a union, and effectively for compulsory unionism, could be valid under a general power in the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (s 38), having regard to specific provisions in the same statute (s 56) dealing with preference to unionists. Again, the passage normally cited is in the judgment of Dixon J. Often only the second paragraph extracted below is cited but the full passage reads:
The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization are, as I think, conferred by s. 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorizes. That appears to me to be the true intention of the Act. The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s. 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.
But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. …
81 In Wallis, again, the specific provision was treated as the source (and the only source) of authority. If that principle truly applied to the present case it would mean that a power to investigate a complaint made to ACMA about non-observance of a code of practice could only arise pursuant to an obligation to do so pursuant to s 149. However, s 149 appears to me to serve a different purpose. In the form it took at the relevant time it represented a statutory guarantee that ACMA would deal with particular kinds of complaints under s 147 or s 148, including a proper and valid complaint to a broadcaster about program content or compliance with a code of practice which a complainant believed to have been erroneously handled or wrongly rejected. That statutory guarantee did not, in my view, operate as a fetter upon the general power of investigation given by s 170.
82 In Nystrom, Gleeson CJ said (of two provisions in the Migration Act 1958 (Cth)) (at [2]):
2 … The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said.
(Footnotes omitted.)
83 Gummow and Hayne JJ in Nystrom also pointed out (at [48]) that any contention of "implied repeal" based on Anthony Hordern:
… requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands.
(Footnote omitted.)
84 Their Honours went on (at [49]):
49 … there is a confusion of ideas in compounding the doctrine of implied repeal and what was said in Anthony Hordern. That case, and the cases in this Court which have considered it, were concerned with questions of construction of two provisions, both of which remained effective in their terms, with no abrogation, by repeal, of the one by the other.
85 Their Honours then discussed Anthony Hordern in greater detail and Wallis, as well as later cases, and said (at [59]):
59 Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power", or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
(Emphasis added.) (Footnotes omitted.)
(See also Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 ("the Malaysian Declaration Case") (at [84]).
86 The applicant's argument in this area did not depend upon the resolution of any tension, conflict or contradiction in the statutory provisions. It depended upon notions of procedural exclusivity. That is to say, that the sole statutory source of power available to investigate any issue about compliance with a code of practice was when there was a valid complaint under s 148. I do not accept this contention.
87 The applicant's thesis appeared to depend upon the idea that, when the obligation in s 149 is read in conjunction with the conditions stated in s 148, the statutory scheme operated to protect the applicant from all but valid complaints under the Codes and, further, denied any power to ACMA to enter upon any investigation in that area at its own discretion. Its power and authority to investigate were only engaged by individual members of the public acting in a procedurally effective way.
88 The significance of a valid complaint to ACMA under s 148 is, if the other conditions are satisfied, that ACMA was obliged to investigate the complaint under the terms of s 149 applying at the time. The absence of such a statutory obligation in a particular case does not, in my view, extinguish ACMA's power of investigation at its own discretion. Nor did the presence of a valid complaint operate to curtail the extent of an investigation which ACMA may decide to conduct at the same time under s 170.
89 The significance of an investigation conducted concurrently under s 149 and s 170 would be that a complainant must be advised of the result of such part of an investigation as is obliged under s 149 and ACMA will have the discretion mentioned in s 178 about whether a report is prepared. Also, the formal end date of each investigation will be determined in accordance with s 4(3) and (4) of the ACMA Act (to which I refer shortly). But none of those procedural differences makes any difference of substance to the availability of power.
90 I can see no reason, therefore, why a complaint made under s 148 (or any issue concerning a code of practice) might not also be considered under s 170, or why a complaint made directly to ACMA, but not to a broadcaster, would fall outside ACMA's remit for that reason. Of course, ACMA has a discretion to investigate under s 170, whereas it had an obligation to do so in an appropriate case under s 149, but that is a different question from its power.
91 ACMA had a further answer to the applicant's arguments which, if accepted, would avoid any real possibility of inconsistency between s 149 and s 170 of the Act. It was that s 149 of the Act should not be seen as an independent source of power at all. Rather, ACMA argued, it should be seen as imposing an obligation to exercise the power in s 170.
92 An alternative construction advanced by ACMA was that the engagement or non-engagement of s 149 on the facts of a particular case left ACMA's discretion under s 170 unrestricted, save by reference to its own terms and statutory purpose. Acceptance of either argument would defeat the applicant's contentions.
93 As I have already indicated, upon the thesis that s 149 and s 170 are each sources of power the alternative argument should be accepted. However, ACMA's primary proposition seems to me to be the correct construction.
94 The ACMA Act refers, in a number of places, to the possibility of investigation by ACMA under various statutory provisions. Section 3 of the ACMA Act provides the following definition:
investigation means an investigation conducted, or proposed to be conducted, by the ACMA under:
(a) Part 26 of the Telecommunications Act 1997; or
(b) Part 11 or 13 of the Broadcasting Services Act 1992; or
(c) Part 4 of Schedule 5, Part 5 of Schedule 6, or Part 3 of Schedule 7, to the Broadcasting Services Act 1992.
95 Section 4 of the ACMA Act provides for when particular investigations under various statutory provisions come to an end. Investigations under Parts 11 and 13 of the Act (i.e. under s 149 and s 170) are again separately mentioned, as are other investigations under the Act and other Acts.
96 For example, s 4(3) and (4) of the ACMA Act provided (until 16 October 2014):
4 When does an inquiry, investigation or hearing end?
…
(3) An investigation under Part 11 of the Broadcasting Services Act 1992 ends at the end of the day the ACMA notifies the complainant of the results of the investigation under whichever of subsections 149(3) or 152(3) of that Act is applicable.
(4) An investigation under Part 13 of the Broadcasting Services Act 1992 ends:
(a) if the ACMA decides to prepare a report about the investigation under section 178 of that Act - at the end of the day the ACMA completes the report; or
(b) otherwise - at the end of the day the ACMA completes the investigation.
…
97 Those and the other provisions in s 4 of the ACMA Act are relevant to particular aspects of the ACMA Act (e.g. s 21(3) which permit extension of a term of a member of ACMA to the end of an inquiry, investigation or hearing) but they do not seem to me to govern the operation of the Act, or to dictate that investigations under the Act should be seen to have a number of sources of statutory authority.
98 Part 13 of the Act, as I have already indicated, provides a large number of procedural powers to ACMA in connection with investigations and hearings. I see no reason to conclude that s 149 evinced a statutory intention that an investigation which it commanded should stand apart from investigations referred to in Part 13 of the Act - i.e. those authorised by s 170. The command in s 149 was not inconsistent with those arrangements. I accept ACMA's argument that the source of power to investigate is in Part 13 of the Act, and in particular in s 170, and that the statutory command which was in s 149 was not a relevant source of power.
99 That further conclusion provides another reason to reject the applicant's central premise.
100 The result of these conclusions is that ACMA was obliged to investigate Mr Mansford's complaint under s 149 of the Act, but its investigation pursuant to s 170 also fulfilled that purpose and was not otherwise invalid.
101 ACMA was also entitled, if it chose to do so, to investigate Ms Webb's complaint under s 170.
102 The remaining challenge was expressed as follows:
(c) Assuming that the Respondent had any relevant power to make a determination about the Commercial Radio Australia Codes of Practice 2013 (Codes), did it err in law in misunderstanding clause 2.2 of the Codes?
The Applicant submits that the Respondent has misconstrued the relevant elements of clause 2.2 of the Codes by:
i. failing to have regard to the particular audience of the program complained of; and
ii. applying a standard of counsel of perfection to the requirement that the licensee take 'reasonable efforts' for the purposes of ensuring that (i) factual material is reasonably supportable as being accurate, and (ii) substantial errors of fact are corrected at the earliest possible opportunity within the meaning of clause 2.2 of the Codes.
103 I can see no merit at all in this argument.
104 ACMA found that the material broadcast was not accurate, and that the correction was not adequate or appropriate in the circumstances. I have set out some parts of its reasons for those findings. I see no basis to conclude that ACMA misunderstood the matters for its attention, failed to address them or made any error susceptible of review in the present proceedings. I am not asked to address the merits, and could not do so.
105 Clause 2.2 of the Codes erects two obligations. They are not identical. The obligation in cl 2.2(a) (but not that in cl 2.2(b)) is subject to the possibility of relief given in the succeeding paragraph - namely, that there is a correction (about material not reasonably supportable as accurate) which is "adequate and appropriate in all the circumstances" (my emphasis) within stated times. Because the possibility exists of compliance up to 30 days after a complaint to ACMA, it is evident that a correction might be much later than a broadcast but no doubt the timing of a correction might bear upon the judgment to be made whether it was adequate and appropriate in all the circumstances. No further attention need be given to that issue in the present case.
106 ACMA's report said:
The adequacy and appropriateness of any correction must be judged according to all the circumstances of the particular case - which includes not only the timing and placement of the correction but the terms both of the correction and the original, inaccurate broadcast.
In a previous investigation, the ACMA indicated that an adequate and appropriate correction would ordinarily 'involve a clear-on-air acknowledgement of the error made in a particular broadcast and a statement of the correct position, in such a way that there is a clear connection between the error made and the correction'.
The ACMA notes that the correction made by Mr Jones was flagged as a correction; it was made promptly on air (approximately one and a half hours following the initial statements); and was in substantially the same terms as the correction that had been published in The Weekend Australian on 21 September 2013.
(Footnote omitted.)
107 There was thus no issue about the timing of the correction, or about the fact that it reflected the correction made to the earlier report.
108 The comments treated by ACMA as the correction were as follows:
Correction
Earlier this morning, I just want to correct this, I made comment of a report in The Australian on Monday which said the Intergovernmental Panel on Climate Change had dramatically - this is what The Australian said - revised down the rate of global warming over the past 60 years and it said in fact the new rate of 0.12 degrees Celsius every decade is almost the same as the IPCC's 2007 figure of 0.13 Celsius every decade over the 50 years to 2005.
Well, the real admission, my attention just has been drawn to this, in the draft is best described by saying, because deep in the article came a critical admission, a leaked draft of the report to be released on Friday by the IPCC, the UN body given a Nobel prize for its climate alarmism, admits temperatures have in fact all but stopped rising.
The Age newspaper said, warming has slowed in the past 15 years to 0.05 degree Celsius a decade, 0.05 below the long term average of 0.12 since 1951. So basically, this rise, which is trivial, according to the reports say less than 114 of a 117 leading climate models, that's what they predicted, 114 out of 117, and I said the climate models are wrong, and as one media report said, they suggest our rising carbon dioxide admissions may not have much influence on climate after all. So from 0.05, those seem to be the correct figures, 0.05 of a degree Celsius a decade below the long term average of 0.12. So basically the temperatures have all but stopped rising.
109 The applicant argued that only the first paragraph of this extract from the broadcast should be treated as the correction. In my view, it was open to ACMA, whatever passage might contain the "correction", to pay regard to the whole of the immediate context in which the "correction" was offered. I discern no matter susceptible of judicial review in that aspect of the decision, or in the overall evaluation which followed.
110 Having regard to the substance of the matters discussed above, it is not necessary to discuss the detailed manner in which particular provisions of the ADJR Act were said to be specifically engaged. In my view, the applicant has failed to make out any case for relief.